The Justice Department made 763 requests for "sneak-and-peek" warrants in 2008, but only three of those had to with terrorism investigations, Sen. Russ Feingold told a Senate Judiciary Committee hearing on Wednesday.
"Sneak-and-peek" warrants allow law enforcement officials to break into homes and businesses and search the premises without the investigated party knowing. The authority for them was passed as part of the USA Patriot Act in late 2001, ostensibly as a counter-terrorism measure.
Sen. Feingold (D-WI) said that 65 percent of the cases for which sneak-and-peek warrants were used were drug investigations. And Assistant Attorney General David Kris told Feingold that, in most terrorism cases, surveillance methods are "generally covert altogether," and do not use sneak-and-peek warrants.
The revelations strengthen the arguments of opponents of the Patriot Act, who have long said that the powers granted the government to fight terrorism in the wake of 9/11 would end up being used for other purposes. Now, it appears that one of those powers -- sneak-and-peek searches -- was never meant for terrorism investigations in the first place.
"It's not meant for intelligence, it's for criminal cases," Kris told the Senate Judiciary Committee. "So I guess it's not surprising to me that it applies in drug cases."
"That's not how this was sold to the American people," Feingold responded. "It was sold -- as stated on the DoJ's Web site in 2005 -- as being necessary 'to conduct investigations without tipping off terrorists.'"
Both Kris and Department of Justice Inspector General Glenn Fine agreed that "additional vigilance" is needed in monitoring the way the government uses surveillance powers.
Feingold is spearheading an effort to reform laws on surveillance powers ahead of the expiry of parts of the Patriot Act later this year. The Obama administration has announced it would like to see three key elements of the Patriot Act renewed. Those elements include allowing authorities to collect a wide range of financial and personal information on targets, as well as allowing "roving wiretaps" to follow suspects around.
But last week Feingold and seven other Democratic senators unveiled the Judicious Use of Surveillance Tools in Counterterrorism Efforts (JUSTICE) Act, which aims to "fix problems with surveillance laws that threaten the rights and liberties of American citizens" without damaging the government's ability to monitor suspected terrorists, the senators said in a joint statement.
The bill's reforms "include more effective checks on government searches of Americans’ personal records, the 'sneak and peek' search provision of the PATRIOT Act, 'John Doe' roving wiretaps and other overbroad authorities," the statement said.
The bill would also repeal the Bush-era law that grants immunity from lawsuits to telecommunications companies that participated in the federal government's warrantless wiretapping program. The immunity measure was supported by then-Senator Barack Obama, but not by Vice-President Joe Biden, or Secretary of State Hillary Clinton, who as senators voted against it.
-- Daniel Tencer
The following video of Senate Judiciary Committee proceedings was uploaded to YouTube on Sept. 23, 2009: